Shri SUBHASISH CHAKRABORTY, v. AMRI HOSPITALS

2013.

2. As per the averments in the complaints, filed by the Legal Heirs/Authorized Representatives of some of the patients, who perished in the fire, on 09.12.2011, at around

02.00 a.m, there was fire in the basement of the Annexe Building of the Hospital, meant for car parking. However, it was being used for storage of highly combustible items, like chemical waste, diesel, oxygen cylinders etc. Because of such inflammable material, the fire spread, emitting poisonous smoke, which got circulated in the entire Building through the Air Conditioning ducts. The fire could not be controlled by the security personnel on duty. On being informed, the night administrator, instructed the security to close the collapsible door at the entrance of the Annexe Building; on being contacted by some patients, the fire brigade reached the spot around 4.00 a.m.; neither the relatives of the patients were permitted to enter the Hospital nor the patients were allowed to leave the Hospital as they were required to clear the outstanding bills before leaving the Hospital. A large number of patients died due to Asphyxia caused by the poisonous gas. The bodies were brought out of the building by the fire brigade, around 6.30 a.m. and were sent for post-mortem.

3. It is alleged that there were gross negligence and deficiency in service on the part of the Hospital because: i) the security personnel on duty did not immediately call the fire brigade for assistance; (ii) the fire brigade reached the spot after two hours of noticing of fire and that too when a call was made to them by a patient; iii) the fire alarms and sprinklers, mandatory in such kind of multi-storeyed buildings, did not function at the time of fire as these were either switched off or were not installed properly; iv) insistence of the staff of the Hospital in clearing the outstanding bills at that crucial stage before leaving the Hospital, was not only inhuman, it resulted in loss of human lives; v) the hospital staff, including the nurses on duty, did not make any attempt to take care and guide the patients, some of them being in critical condition and unable to move; and (vi) to facilitate some fresh air coming in and emergency exit for those trapped inside, the glass panes were not broken by the staff.

4. For the sake of ready reference, break up of amounts claimed in the Complaints as pecuniary and non-pecuniary damages under different heads, with details of the age, source of income, complainant's relationship with them, in respect of each of the victims is given in a tabular format below:-

Name of the Age Consumer Complainants/ Amount of

Patient/victim damage Sl. Of Claimants claimedComplaint (deceased) Claims HeadNo. and Vic-No. (Relationship In

occupation tim with Victim) Rupees

Raj Kumar 1. Indrani 1. Loss of prospective 2,00,000

C.C.NO.383

1. Biswas, 82 Chatterjee of 2013 and future earnings Aged 50 yrs

6

Retired 2. Medical Expenses 11,553 Government

Employee 2. Debjani Das 3. Legal Expenses 1,00,000 -

4. Cost of the 50,000 Aged 49 years complaint

1,00,00,000

5. Loss of care, guidance,

(Daughters of the Deceased) companionship and life

2,00,00,000

amenities

6. Emotional Distress,

1,50,00,000

pain and suffering

7. Pain suffering endured 2,00,00,000

by the patient 1,00,00,000

8. Punitive Damages

9. Special damage 7,53,61,553

TOTAL DAMAGE

1. Loss of prospective 2,20,112

Sasadhar Samarendra and future earnings Maalick Mallick -

2. Medical Expenses 1,00,000 C.C.NO.385 (No Aged 62 yrs.

2. 88 3. Legal Expenses 50,000 of 2013 occupation

and source of 4. Cost of the 1,00,00,000 Income (Son of complaint

disclosed) deceased) 2,00,00,000

5. Loss of care, guidance,

7

companionship and life

1,50,00,000

amenities

6. Emotional Distress,

2,00,00,000

pain and suffering

7. Pain suffering endured 1,00,00,000

by the patient

8. Punitive Damages 7,53,61,553

TOTAL DAMAGES

1. Loss of prospective 5,00,000

and future earnings

2. Medical Expenses 10,553

3. Legal Expenses 1,00,000

4. Cost of the 50,000 Nitai Sundar complaint Pal Ms. Jhumur Pal

1,00,00,000

5. Loss of care, Aged 43 years C.C.NO.384 guidance,

3. 76

of 2013 (No source or companionship and particulars of (Wife of life income 2,00,00,000deceased) disclosed) amenities

6. Emotional Distress,

1,50,00,000

pain and suffering

7. Pain suffering endured 2,00,00,000

by the patient 1,00,00,000

8

8. Punitive Damages

9. Special damage 7,56,60,000

TOTAL DAMAGE

1. Loss of prospective

60,00,000

and future earnings

2. Medical Expenses

1,10,000

3. Legal Expenses

1,00,000

4. Cost of the complaint 50,000

5. Loss of care, 50,00,000

guidance, Tapas Ray Mina Roy C.C.NO.402 Choudhary companionship and Choudhury

of 2013 life

Aged 46 years

4. 71

amenities

2,00,00,000

(A Business

6. Emotional Distress, woman) (Son of

deceased) pain and suffering 1,50,00,000

7. Pain suffering endured

2,00,00,000

by the patient

1,00,00,000

8. Punitive Damages

9. Special damage

7,03,20,000

TOTAL DAMAGE

9

1. Loss of prospective

5,00,000

and future earnings

2. Medical Expenses

78,661

3. Legal Expenses

1,00,000

4. Cost of the complaint 50,000

5. Loss of care, 1,00,00,000

Patit Paban guidance, Sen Pradip Sen

companionship and Aged 46 years life

C.C.NO.388

5. 70 2,00,00,000

of 2013 (No amenities occupation

and source of (Son of 6. Emotional Distress, Income deceased) pain and suffering 1,50,00,000

disclosed)

7. Pain suffering endured

2,00,00,000

by the patient

1,00,00,000

8. Punitive Damages

9. Special damage

7,53,28,661

TOTAL DAMAGE

1. Surjit 1. Loss of prospective 5,00,000

Kamala Chatterjee Chatterjee and future earnings Aged 67 years

C.C.NO.390 2. Medical Expenses 4,49,995

6.. 65

of 2013 (Retired 3. Legal Expenses 1,00,000 School (Husband of

Teacher) deceased) 4. Cost of the 50,000 complaint

10

5. Loss of care, 50,00,000

guidance,

2. Suarajit Chattopadhyay companionship and life

Aged 36 years

amenities 2,00,00,000

6. Emotional Distress, (Son of

deceased) pain and suffering for

1,50,00,000

husband

7. Emotional Distress, pain and suffering for 1,50,00,000

husband

8. Pain suffering 2,00,00,000

endured

1,00,00,000

by the patient

9. Punitive Damages

8,60,99,995

9. Special damage

TOTAL DAMAGE

1. Paromita 1. Medical Expenses 50,000

Guha Thakurt - Mridula Guha Aged 45 years 2. Legal Expenses 1,00,000 Thkurta

3. Cost of the 50,000C.C.NO.398

07. 63 complaint of 2013

(Daughter of 50,00,000 (Occupation the deceased) 4. Loss of care, not disclosed) guidance,

companionship and

11

2. Parobidita G. life 3,00,00,000

Thakurta - Aged 32 years amenities

5. Emotional Distress, (Daughter of pain and suffering 1,50,00,000

deceased)

6. Pain suffering 2,00,00,000

endured

1,00,00,000

by the patient

7. Punitive Damages

8,02,00,000

8. Special damage

TOTAL DAMAGE

1. Loss of prospective 15,00,000

and future earnings

2. Medical Expenses 82,938

3. Legal Expenses 1,00,000 Jaharlal Sarkar

Mrs. Chandana 4. Cost of the 50,000 Sarkar complaint

1,00,00,000

(A Sramik Aged 42 years 5. Loss of care, C.C.NO.401

08. with West 58 guidance, of 2013 Bengal State Electricity companionship and Distribution (Wife of life Company Ltd. deceased) 2,00,00,000

) amenities

6. Emotional Distress,

1,50,00,000

pain and suffering

7. Pain suffering endured 2,00,00,000

12

by the patient 1,00,00,000

8. Punitive Damages

9. Special damage 7,67,32,938

TOTAL DAMAGE

1. Medical Expenses

1,19,226

2. Legal Expenses

1,00,000

3. Cost of the complaint 50,000

4. Loss of care, 1,00,00,000 guidance,

companionship and

Uttam life

Sushila Devi Agarwala Agarwala amenities

1,50,00,000

C.C.NO.391 Aged 32 years

9. 56

of 2013 5. Emotional Distress, (Home Maker) pain and suffering

1,50,00,000

(son of deceased) 6. Pain suffering endured

2,00,00,000

by the patient

1,00,00,000

7. Punitive Damages

8. Special damage

7,52,69,226

TOTAL DAMAGE

13

1. Medical Expenses

77,000

2. Legal Expenses

1,00,000

3. Cost of the complaint 50,000

4. Loss of care, 50,00,000 guidance,

companionship and

Swapan Kumar life

Paik

Prapti Paik amenities 2,00,00,000

C.C.NO.399 Aged 60 years

10. 50

of 2013 5. Emotional Distress, (Home Maker) pain and suffering 1,50,00,000

(Husband of deceased) 6. Pain suffering endured

2,00,00,000

by the patient

1,00,00,000

7. Punitive Damages

8. Special damage

7,02,27,000

TOTAL DAMAGE

Swapan 1. Loss of prospective 65,00,000

Mahanta and future earnings Ms. Krishna

Mahanta 2. Medical Expenses 2,61,942 {An employee

C.C.NO.400

11. at ECL (Coal 48 Aged 41 years 3. Legal Expenses 1,00,000 of 2013

India}

(Wife of 4. Cost of the 50,000

(Income not deceased) complaint

disclosed) 2,00,00,000

5. Loss of care, guidance,

14

companionship and life

2,00,00,000

amenities

6. Emotional Distress,

1,50,000

pain and suffering

7. Pain suffering endured 2,00,00,000

by the patient 1,00,00,000

8. Punitive Damages

9. Special damage 9,19,11,942

TOTAL DAMAGE

1. Medical Expenses 93,028

2. Legal Expenses 1,00,000

3. Cost of the 50,000 complaint

3,00,00,000

Subhasis 4. Loss of care, Munmum Chakraborty guidance, Chakraborty

C.C.NO.389 Aged 41 years companionship and

12. 36

of 2013 life 2,00,00,000

(House amenities Maker) (Husband of deceased) 5. Emotional Distress,

1,50,00,000

pain and suffering

6. Pain suffering endured 2,00,00,000

by the patient 1,00,00,000

15

16

C.C.NO.387 Prakita Paul Dhananjoy 1. Loss of prospective 50,00,000

15 15

of 2013 Paul

17

(Class IXth Aged 44 years and future earnings student)

2. Medical Expenses 36,619 (Father of 3. Legal Expenses 1,00,000 deceased)

4. Cost of the 50,000 complaint

1,00,00,000

5. Loss of care, guidance,

companionship and life

2,00,00,000

amenities

6. Emotional Distress,

1,50,00,000

pain and suffering

7. Pain suffering endured 2,00,00,000

by the patient 1,00,00,000

8. Punitive Damages

9. Special damage 7,56,86,619

TOTAL DAMAGE

1. Loss of income of wife 1,40,97,625 Chandrani Mr. Nilabh Saha Haldar (deceased) by Aged 39 years usingC.C.NO.412 (State to be Sr.

16. 34

of 2013 Scientific multiplier of 25 on Officer)

(Husband of entire total annual deceasd

income of

18

Rs.5,63,905/- 1,00,83,750

2. Loss of income of self

by using multiplier of

25 on entire annual income of

Rs.4,03,350/-

10,00,00,000

(last earned in the year

2010-11)

3. Non pecuniary 2,50,00,000

Losses (Subdivided in the

2,00,00,000

rejoinder)

i) Loss of love and affection

2,50,00,000

(ii) Damages for mental

and physical 1,00,00,000

shock, pain, suffering for rest

1,00,00,000

of life

1,00,00,000

iii) Loss of all amenities in life

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iv) Loss of all work, devotion and

motivation 12,41,81,375

v) Loss of life expectancy

vi) Mental stress in life,

frustration and agony

TOTAL DAMAGE

5. Upon notice, Written Versions have been filed on behalf of the Hospital/Opposite Party refuting the allegations made in each of the Complaints on merits. By way of preliminary objections, the Hospital has raised the question of the maintainability of the Complaints before this Commission, inter-alia on the grounds that: (i) various other proceedings, civil and criminal in nature, arising out of the same set of facts are under adjudication before other courts of law and therefore, disclosure of its defence in the Complaints would cause serious prejudice to the rights of the Hospital and (ii) the claims made are highly exaggerated, fanciful, without any basis, vague and artificially jacked up so as to bring the Complaints within the pecuniary jurisdiction of this Commission. It is, thus, pleaded that the Complaints are liable to be dismissed on these short grounds.

6. We have heard learned counsel for the parties on the question of admission of the Complaints.

7. Mr. Pallav Sisodia, Ld. Senior Counsel, appearing on behalf of the Opposite Party, submitted that in light of the Constitutional mandate, enshrined in Article 20

(3) of the Constitution of India, the Opposite Party cannot be compelled to disclose their defence as well as the evidence in support

thereof, till trial in the criminal cases is concluded. It was urged that in criminal cases, arguments on charge are being addressed and if ultimately charge is not framed against the Opposite Party, the present Complaints would be rendered infructuous. It was also strenuously contended that the claims made in the Complaints are without any basis, highly exaggerated, speculative and unrealistic in nature, and therefore, the Complaints are liable to be dismissed. To buttress his stand, Ld. Counsel relied on the decisions of this Commission in Sujata Nath

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Vs. Popular Nursing Home & Ors. III (2011) CPJ 239 (NC) and Kumari Femy & Ors. Vs. Kavitha V.K. (Dr.) & Ors. I (2012) CPJ 34 (NC).

8. Per contra, Mr. Vikramjit Banerjee, appearing for the Complainants, vehemently submitted that simultaneous criminal proceedings is no bar to the initiation, continuation and adjudication in the Complaints filed under the Act, more so, when the standard of proof in proceedings under the Act and Criminal proceedings is entirely different. In support, Ld. Counsel placed reliance on the decisions of the Supreme Court in Guru Granth Saheb Sthan Meerghat Vanaras Vs. Ved Prakash & Ors. (2013) 7 SCC 622 and Suba Singh & Anr. Vs. Davinder Kaur & Anr. (2011) 13 SCC 296. Strong reliance was also placed on the decision of the Supreme Court in Charan Singh Vs. Healing Touch Hospital & Ors. (2000) 7 SCC 668 to contend that this Commission does not have the power to relegate the Complainants to the Forums below, because they cannot grant relief beyond the limit of their pecuniary jurisdiction. On the question of pecuniary jurisdiction, Ld. Counsel submitted that at this juncture the question of quantification of claims made in the Complaints, cannot be gone into, and therefore, the Complaints should not be dismissed on the ground of pecuniary jurisdiction.

9. Having given our anxious consideration to the rival stands, we are of the opinion, that the plea of dismissal or stay of proceedings in the Complaints, on the touchstone of the principle of self-incrimination, as enshrined in Article 20(3) of the Constitution of India, is stated to the rejected. Apart from the fact that the very concept of self-incrimination is foreign to the proceedings under the Act wherein the Opposite Party is not an accused as in a criminal proceedings. Neither the rigors of the Evidence Act 1872, nor of the Criminal Procedure Code, 1908 are attracted in the proceedings under the Act, which provides for an alternative system of consumer justice by summary trial. Hence, we outrightly reject the argument. As regards the question of stay of the proceedings in the Complaints because of pendency of criminal cases against the Opposite Party, we are of the view that this plea also merits rejection. Recently the question of simultaneous prosecution of the criminal proceedings with civil suit, came up for consideration of the Supreme Court in Guru Granth Saheb Sthan Meerghat Vanaras (supra). Relying on the observations of the Constitution Bench of the Supreme Court in M.S. Sheriff Vs. State of Madras AIR 1954 SCC 397, the Court held that no hard and fast rule could be laid down in this regard. Nonetheless the possibility of conflicting decisions in the civil and criminal courts is not a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, which is not even the case of the Opposite Party here.

10. We are, therefore, of the view that the trial in criminal cases against the Opposite Party, is no ground for stay of proceedings before the Consumer Fora. As a matter of fact, having regard to the object and intent of the Act, summary trial of Consumer Complaint has to be given precedence over other cases, be it civil or criminal in nature. The question of double jeopardy, self-incrimination or the binding effect of the findings in summary proceedings under the Act, does not arise on facts, at hand. Accordingly, the first preliminary objection fails.

11. We now advert to the second objection relating to the exaggeration of the claim in the Complaints. In Charan Singh (supra), alleging medical negligence, a Complaint was filed before this Commission under the Act, claiming ₹34 lac by way of compensation from

21

the Respondent hospital on various grounds, under different heads. The Complaint was however, dismissed by a brief order, which reads as follows:

"… The complainant was drawing a salary of ₹3000 plus allowances. This is his allegation which is not admitted by the opposite party. Even if we accept this contention is correct and even if we accept that as a result of wrong treatment given in the Hospital he has suffered permanent disability, the claim of ₹34 lakhs made by the complainant is excessive. We are of the view that this exaggerated claim has been made only for the purpose of invoking the jurisdiction of this Commission…."

12. Upon challenge, the order was set aside by the Hon'ble Supreme Court, observing thus:

"The National Consumer Forum, in our opinion, was not fair in disposing of the complaint of the appellant by styling his claim as "excessive" or "exaggerated"

after six years of the pendency of the complaint, and asking the appellant to move the State Commission or the District Forum by making "a realistic claim".

Whether the claim of the appellant was "realistic", "exaggerated" or "excessive", could only have been determined after the appellant had been given an opportunity to prove the case he had set up and established his claim under various heads. It was not fair to call his claim "unrealistic", "exaggerated" or

"excessive" without giving the appellant an opportunity to substantiate his case."

13. It appears from the observations in paragraphs No.11, 14 and 15 (SCC) of the Charan Singh's case (Supra) that the Hon'ble Supreme Court expressed its unhappiness over the said order mainly for the reasons that: (i) the complaint was dismissed after six years of its filing even when the pleadings were complete; (ii) the sole factor taken into consideration to style the claim as "unrealistic" or "exaggerated" or "excessive" was only the amount of salary being drawn by the Complainant; (iii) the impugned order did not record any reasons in support of the conclusions that claim was unrealistic, etc. except for the salary and (iv) because of the jurisdictional limits of the Lower Fora it would not be able to award adequate compensation, even if it was satisfied that in a given case, the Complainant was entitled to more compensation than what was claimed.

14. In our view, none of the afore-noted circumstances exist in the present cases. It is evident from the afore-noted break-up of the compensation claimed, that the claims made under the heads "Loss of care, guidance, companionship and life amenities", "emotional distress, pain and suffering", "punitive damages" and "Special Damages" are purely on ad hoc basis. It is significant to note that irrespective of the age of the deceased/victim, their financial status etc., all the Complainants have claimed almost the same amount of compensation, ranging between ₹7,00,00,000/- to ₹9,00,00,000/- under identical heads. For instance, the compensation/damages claimed under the aforesaid heads, are almost the same in relation to a victim aged 88 years and a victim aged 15 years. There is no quarrel with the proposition that the question

22

whether or not a claim made in a complaint is "realistic", "exaggerated" or

"excessive" is to be determined after the Complainant has been given an opportunity to prove the case he has set up and establish his claim under various heads, but it has also been held that where ex-facie the claim made appears to be unusually high without any basis, as per the case set up in the complaint, a Consumer Fora would be justified in declining to admit the Complaint. As regards the jurisdictional limitations of the Fora below to award compensation more than what is claimed in the complaint, we feel that in view of the observations of the Hon'ble Supreme Court in a recent decision in Balram Prasad & Ors. Vs. Kunal Saha & Ors. (2014) 1 SCC 384, the State Commission shall not be faced with any such handicap.

15. A similar issue came up for consideration before this Commission in Sujata Nath Vs. Popular Nursing Home & Ors. - CC No. 60 of 2011. Rejecting the contention of the Complainant that the Complainant was free to claim the compensation as per his own assessment, keeping in view the extent of the loss and the injury suffered by him, and that the complaint could not be disposed of at a preliminary stage on the ground that the claim was exaggerated, vide order dated 08.07.2011, the complaint was dismissed with a direction to the complainant to suitably amend her complaint and file the same before an appropriate Consumer Forum. The said order has been affirmed by the Hon'ble Supreme Court, vide an order dated 14.10.2011, in Civil Appeal No. 8642 of 2011. A similar view was taken by this Commission in CC No. 9 of 2010, which was dismissed on the ground that the Complainant had unreasonably inflated the claim for exemplary damages for bringing the complaint with the jurisdiction of this Commission. The Civil Appeal preferred by the Complainant against the said order was dismissed by the Hon'ble Supreme Court vide order dated 06.10.2010.

16. For the aforegoing reasons, we are of the opinion that, as at present, the Complainants have not been able to satisfy us as to on what basis the claims ranging between ₹7,00,00,000/- to ₹2,00,00,000/-, have been quantified. We are convinced that the claims have been inflated in order to invoke the jurisdiction of this Commission.

17. Consequently, we decline to admit the Complaints. All the complaints are dismissed accordingly, with liberty to the Complainants to suitably amend their complaints and file the same before an Appropriate Consumer Fora. Needless to clarify that nothing observed hereinabove shall be construed as an expression of opinion on the merits of the Complaints. Since it was pointed out that fresh complaints, at this juncture, may be barred by limitation, as prescribed in Section 24A of the Act, we direct that if the Complainants choose to file fresh complaints, their applications for condonation of delay shall be considered by excluding the time spent before this Commission and keeping in view the observations of the Hon'ble Supreme Court in Laxmi Engineering Works Vs. PSG Industrial Institute (1995) 3 SCC 583. No costs.

IA Nos. 1746 to 1761/2014(for stay)

The main Complaints having been dismissed, these applications filed by the Opposite Party for stay of proceedings in the Complaints are rendered infructuous and are dismissed accordingly.

23

Yd*/ar

......................J

D.K. JAIN

PRESIDENT

......................

VINAY KUMAR

MEMBER

24